ORDER ON DEFENDANT AED'S MOTION TO DISMISS OR,
ALTERNATIVELY, FOR MORE DEFINITE STATEMENT

Debra
McVicker Lynch United States Magistrate Judge

Defendant
Advanced Explosives Demolition, Inc. (“AED”)
moved to dismiss the plaintiff's complaint on the grounds
that the claims are barred by the economic loss rule or the
statute of limitations. In its reply brief, to which the
court allowed plaintiff Walsh Construction Company to file a
surreply, AED raised another ground for dismissal-lack of
constitutional standing. In the alternative to these
dismissal arguments, AED asks the court to order Walsh to
provide a more definite statement of its claims.

AED's
motion is denied because (1) plaintiff Walsh Construction has
standing; (2) the economic loss rule and statute of
limitations arguments are not resolvable in this case on a
motion to dismiss; and (3) Rule 12(e) “more definite
statement” relief is inappropriate and unnecessary.

The
Complaint

Walsh
Construction's complaint alleges that under a contract
with the Indiana Department of Transportation, it built a new
bridge between Milton, Kentucky and Madison, Indiana (the
“New Milton-Madison Bridge” or “New
Bridge”). The New Bridge was built adjacent to the
existing or “old” Milton-Madison Bridge. At some
point, Walsh Construction entered into a contract with a
company named Omega Demolition to “perform, among other
services, explosive demolition services in connection
with” Walsh's New Bridge construction project.
Omega, in turn, contracted with AED to perform explosive
demolition services for the removal of the Old Milton-Madison
Bridge. See Complaint, Dkt. 1, ¶¶ 7-8.
During AED's explosive demolition work on the Old Bridge
on certain days in July, August, and September 2013,
“flying shrapnel struck the new adjacent Milton-Madison
Bridge causing indentation/gouges of the Bridge's
structural members and paint chipping.” Id.,
¶ 10.

Walsh
asserts it suffered damages from AED's conduct because
Walsh had to repair the resulting physical damage to the New
Bridge. Walsh seeks relief under a negligence theory (AED
“negligently managed, operated, used, controlled,
conducted, and carried out its” explosive demolition
and negligently failed to control the premises so as not to
damage the New Bridge, complaint, ¶ 16), a negligence
per se theory based on AED's alleged failure to comply
with the Explosive Materials Code, a set of guidelines
adopted as part of Indiana's Fire Prevention Code
(id., ¶¶ 20, 24), and a “strict
liability” theory based on AED's engaging in an
ultra-hazardous activity. (Id., ¶ 12).

AED's
Motion to Dismiss

AED's
motion to dismiss raises three arguments: (1) that Walsh
lacks standing; (2) that the economic loss rule bars relief;
and (3) that Walsh's claims are barred by the statute of
limitations. The court addresses first the statute of
limitations and standing arguments because Walsh's
response to AED's statute of limitations contention
caused AED to assert in its reply brief that Walsh lacks
standing. The court will then address the economic loss rule
argument.

I.
AED is not entitled to dismissal based on the statute of
limitations.

Dismissing
a complaint based on a statute of limitations affirmative
defense is unusual because a complaint need not plead around
an affirmative defense, but it is appropriate to do so when
the complaint alleges facts “sufficient to establish
the complaint's tardiness.” Cancer Foundation,
Inc. v. Cerberus Capital Mgmt., L.P.,559 F.3d 671, 674
(7th Cir. 2009). The complaint alleges that the
damages caused by AED's demolition work occurred in July,
August, and September 2013. There is no suggestion that any
cause of action against AED accrued any later than the time
of this work. Walsh Construction filed its complaint on
August 28, 2017, around four years after the work complained
of.

In its
opening brief, AED argued that Walsh Construction's
claims are governed either by Indiana's two-year statute
of limitations for injuries to personal property, Ind. Code
§ 34-11-2-3, or Kentucky's one-year statute of
limitations governing claims in contract and tort arising out
of alleged acts or omissions in rendering professional
services, Ky Stat. § 413.245.[1] If AED is right that one of
these statutes applies as a matter of law, then the court
could agree that the complaint alleges facts sufficient to
establish its tardiness. But Walsh Construction asserts that
its claims are governed by Indiana's six-year statute of
limitations at Ind. Code § 34-11-2-7(3), governing
actions “for injuries to property other than personal
property. . . .” It argues that its claims seek
recovery for injuries to the New Bridge, and the New Bridge
is considered to be real property, not personal property, and
thus fall within the six-year limitations statute.

In
reply, AED asserts that the claim for damages to the New
Bridge cannot be considered a claim for injuries to real
property because, supposedly, “Indiana rejects
Plaintiff's characterization of repair damages as real
property damage.” Dkt. 29 at p. 2. The only authority
cited by AED to support this assertion is an economic loss
rule case, Indianapolis-Marion County Public Library v.
Charlier Clark & Linard, P.C.,929 N.E.2d 722, 732
(Ind. 2010). Public Library's discussion about
whether certain losses were “property” losses
concerned whether the Library had suffered injury to
“other property” in the context of the economic
loss rule. The case has nothing to do with a statute of
limitations. Public Library never mentions the
injury to real property statute of limitations in Ind. Code
§ 34-11-2-7(3), or any other statute of limitations. It
thus provides no insight into whether this six-year statute
of limitations should apply.

It is
not obvious to the court that Walsh is wrong that its claims
to recover for repairs to the New Bridge is an action for
injury to real property within the meaning of Ind. Code
§ 34-11-2-7-(3). AED does not counter Walsh's
assertions that the New Bridge is “property other than
personal property” or that Walsh is seeking to recover
for an injury to the New Bridge. It may be that later in this
case, a more developed factual record will point to the
application as a matter of law of a particular limitations
period, but AED has not yet demonstrated that the six-year
statute of limitations relied on by Walsh cannot apply. The
court therefore DENIES AED's request that the court
dismiss Walsh's claims against it on statute of
limitations grounds.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;II.
Walsh ...

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